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In a test case before the European Court of Justice last week junior doctors were held to be 'working' even while they slept, renewing concerns over the staffing crisis in the National Health Service.
The action was brought by a German casualty doctor, Norbert Jaeger, on the application of the Working Time Directive, which comes into force in August 2004 and sets a maximum average working week of 58 hours for junior doctors. Dr Jaeger brought the challenge after his employer refused to account as working time periods of rest while on call at the hospital. The court decided that a doctor on call at a hospital was "subject to appreciably greater constraints than a doctor on standby".
Estimates reckon that the ruling will cost the German government £1bn and force them to employ a further 20,000 doctors. However, there were fears that compliance with the directive would hit the UK especially hard because it already suffers the greatest doctor shortage in Europe. The ruling was described as "disappointing" by the Department of Trade and Industry and, according to Tory health spokesman Dr Liam Fix, it represented a "body blow" to the NHS.
But it was no surprise for employment lawyers. "It would have been inconceivable that the court would have gone the other way," commented John Evans, a partner at US firm Coudert and chairman of the Employment Lawyer's International Committee. "The Jaeger case is an indication of the thinking of the courts and their view is stated there in no uncertain terms. And so even if someone is sleeping, even asleep at his employer's desk, it is to be treated as 'working time'." He flagged up the ruling of the European Court in 2000, known as the Simap (Systeme d'Information pour les Marches Publics) judgment, which said Spanish junior doctors sleeping overnight in a hospital must be counted as on duty.
Closer to home, an employment tribunal ruled in favour of nine resident care wardens employed by Harrow Council earlier this month. It was held that workers forced to be on call were protected by the Working Time Regulations, as well as the National Minimum Wage Act, and should be properly paid for their time on standby. The wardens were living in or close to sheltered homes and worked a basic 36-hour week but were on call for another 76 hours a week. Effectively, the women were trapped for 24 hours a day, five days a week and could not leave home. It was held that for the 76 hours the women were on call each week they were at work, which left Harrow Council in breach of the regulations insofar as they provide proper daily breaks. "This resulted in a burden on their family life which one could see as an infringement on their human rights, and their right to a family life," Evans commented. It remains to be seen whether employers, and in particular public services, will be able to absorb the consequences of these judgments or whether this will give rise to further court action. Either way, this will further stretch the stability of these public services.